Whitney v. State

• Decision Date: 31 July 1843
• Citation: 8 Mo. 165
• Parties: WHITNEY v. THE STATE.
• Court: Missouri Supreme Court

8 Mo. 165

WHITNEY

v.THE STATE.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM HOWARD CIRCUIT COURT.

LEONARD and DAVIS, for Appellant. The counsel of Whitney insist that the Circuit Court ought to have set aside the verdict, and granted a new trial, for the following reasons, to wit: 1. Because the verdict was against the instructions of the court. 2. Because the verdict was against the third and fourth instructions given by the court, on the part of Whitney. 3. Because the court erred in giving the fifth instruction asked on the part of the State. 4. Because a member of the jury separated himself from his fellows for more than one-half hour, and went out of town without the consent of the court or the defendant, and not attended by an officer of the court: as to this point, see 7 Cowen, 221: 2 Leigh, 750. 5. Because the evidence offered by the defendant to prove that he was drinking at the several times when he made the contradictory statements, as to the manner he became possessed of the horse, and his usual manner of talking upon horse-trades, was excluded by the court as evidence to the jury. 6. Because the court refused to give the 6th, 7th, 8th, and 9th instructions asked by the accused.

GORDON, Circuit Attorney, for The State. 1. The court committed no error in giving the instructions asked for on the part of the State. The first three and sixth instructions on the part of the State were given in reference to the first and second counts of the indictment, upon both of which the jury found the defendant not guilty, he therefore cannot complain that the court misdirected the jury in relation to the first two counts, but should the court think it proper to look into said instructions, then, I contend, that the law was well laid down by the court, 2 Rus. on Crimes, side-paging, 177; same book, 666; Barbour's Crim. Treatise, 173-4. 2. The court correctly refused the 6th, 7th, 8th, and 9th instructions asked by the defendant, for the reason that said instructions are based upon a partial statement of the facts and not upon the entire facts of the case. 9 Peters' R. 292, 418. 3. The facts upon which said instructions are based, are evidence from which the jury had a right to infer the guilt of the defendant. 4. There is no cause shown, in the affidavit of M. A. Ford, for a new trial. 1 Cowen R. 221; 3 Cowen R. 355; The People v. Douglass, 4 Cowen R. 26; 2 Barn. & Ald. 462; 1 Chitty's R. 401. 5. The fact of the horse being stolen, and a few days afterwards found in the possession of the defendant, is sufficient evidence that he stole him, and it devolved upon him to prove that he did not steal him; 2 Rus. on Crimes, 177, side-paging; 2 Starkie's Ev. 450; and the fact that the defendant gave no evidence of good character, was good evidence that the was a man of bad character. 12 Wendell's R. 78. 6. The court properly refused to permit the defendant to prove that he was in the habit of telling lies when trading and drinking. 7. The court properly overruled the motion for a new trial.

NAPTON, J.

The appellant, together with one Coleman Whitney, was indicted by the grand jury of Howard county, for stealing a horse. The indictment contained three counts; the first charging the defendants with stealing the horse; the second, charging that some person unknown stole the horse, and that the defendants received the horse, knowing him to have been stolen; and the third count, charging that Coleman Whitney, one of the defendants, stole the horse, and that the appellant, Wade H., received the same, knowing him to have been stolen.

Coleman Whitney was not served with process: the appellant pleaded not guilty, and after a trial, was convicted on the third count, and his punishment assessed to two years' imprisonment in the penitentiary.

A bill of exceptions, preserving all the evidence, is on the record. It appears, that in the fall of the year 1839, a negro man belonging to one Arthur Culton, a citizen of Washington county, in this State, was, with his master's permission, on a visit to his wife, then living with John Whitney, in Howard county, the son and near neighbor of the appellant. The negro man had rode his master's horse, and placed him in said John Whitney's stable, from which he was taken in the latter part of September. Shortly after the horse was taken, Coleman Whitney, another son of appellant, was seen in possession of the horse, riding in the direction toward Macon county; in the afternoon of the same day, the appellant started to Macon county, on pretense of business, and was seen about five miles from home in possession of the same horse. The appellant took the horse to Macon county, which is about forty miles from his residence, where he traded him off, after several ineffectual attempts to sell. It appears, that appellant, at Macon county, as well as elsewhere made divers false statements as to the time, place and manner, in which he got possession of said horse. It appeared also, that appellant was drinking when he was attempting to trade the horse in Macon county.

During the examination of the witnesses, the appellant offered to prove, that when engaged in horse trading, he was in the habit of drinking; and when in liquor, was in the habit of telling inconsistent and false tales as to the manner in which he obtained his horses, but the court would not allow the testimony.

It appears, from the bill of exceptions, that the jury, having returned an informal and insufficient verdict, was directed by the court to return to their room and...